10.1 Although Community legislation to prevent, and respond
to, major industrial accidents was first introduced in 1982, the
current requirements are set out in Council Directive 96/82/EC[41]
(the so-called "Seveso Directive"). This includes an
Annex, which identifies both named substances[42]
(in Part 1) and broad categories of dangerous substances[43]
(in Part 2) regarded as potentially hazardous, and it lays down
certain requirements according to the quantities present at a
particular establishment. Where those quantities exceed a basic
threshold, the obligations on an operator involve notification
to the Member State's competent authority of the quantities and
physical form of any dangerous substances present on a site, the
activity carried out at the establishment, and its immediate environment;
the drawing up, and implementation, of an accident prevention
policy; and the reporting of any major accidents (including any
steps proposed to avoid a recurrence). In addition, the Member
State itself must ensure that the need to prevent major accidents,
and to limit their consequences, are taken into account in land
use policies. In cases where the quantities of a dangerous substance
exceed a higher threshold laid down in the Directive, the operator
is subject to more comprehensive requirements regarding the provision
of a major accident prevention policy and safety management system,
emergency plans, and the provision of information on safety measures
to those who could be affected by a major accident originating
at the site.

10.2 Despite its apparently wide coverage, the Directive
is concerned principally with chemical plants and storage facilities
where dangerous substances are present. As a consequence, it does
not, for varying reasons, apply to military establishments; hazards
created by ionizing radiation; the transport of dangerous substances
by road, rail, internal waterways, sea or air; the transport of
dangerous substances in pipelines; the activities of the extractive
industries exploiting minerals in mines and quarries or by means
of boreholes; and waste land-fill sites.

10.3 Following a number of more recent incidents (see
paragraphs 10.4 and 10.5 below) the Commission has been reviewing
the safeguards in the Directive, and, as a result, it has proposed
in this document a number of amendments.

The current proposal

10.4 In addressing the need for action, the Commission
draws attention to two different types of accident. The first
involved separate dambursts in Romania and Spain, leading respectively
to the discharge of waters containing cyanide and acids, from
artificial tailing ponds[44]
created as an offshoot of mineral extraction. Such ponds are not
subject to the present Directive by virtue of the exclusions for
mineral extraction and waste landfill sites, and the Commission
believes that it would be sensible to rectify this omission by
removing such activities from those exclusions (though it points
out that the Directive would still apply only if the storage of
dangerous substances was involved, and would not therefore provide
any protection against dambursts where this condition was not
met).

10.5 The second type of incident arose in Enschede in
the Netherlands, where a series of explosions at a firework company
in the city caused 22 deaths and injury to almost 1000 people.
Although explosives are among the general hazards covered by the
Directive, its application to any particular explosive is governed
by certain specified risk factors. However, the Commission says
that, as those used relate essentially to the ease of ignition
of different explosives, they may fail to reflect the relative
risk potential, and also that the relationship between the gross
weight of fireworks and the quantity of explosive material in
them is unclear. As a result, the company in Enschede, though
holding an operating licence for fireworks, could be regarded
as not coming under the existing legislation. The Commission is
therefore proposing that the definitions in the Directive should
be amended to reflect the explosion hazard, in categories which
would range from mass explosions affecting an entire load virtually
instantaneously to insensitive material, where the risk is limited
to a single article.

10.6 In addition to these amendments which arise from
particular incidents, the Commission recalls that, when Directive
96/82/EC was adopted, questions had been raised over the basis
for the list of named carcinogens in Part 1 of the Annex
and the threshold quantities assigned to them, and over the threshold
quantities for the more general categories in Part 2 covering
substances dangerous to the environment. As a result of studies
carried out since then, it is proposing to add a number of carcinogens
to the list in Part 1, but to increase the thresholds at which
the Directive would apply, so as to bring these better into line
with other designated substances, having regard to the relative
risks involved. Thus, the present upper and lower thresholds of
1 kilogram would be raised to 2 tonnes and 0.5 tonnes respectively,
and, where a carcinogen was in solution, the thresholds would
apply only where the concentration exceeded 5%. On the other hand,
for substances dangerous to the environment (as defined
in Part 2), where the Commission says that relatively small quantities
have often caused severe environmental damage, it is proposing
to reduce the thresholds. In particular, for those classed as
"very toxic to aquatic organisms" the upper and lower
thresholds of 500 and 200 tonnes would be reduced to 200 and 100
tonnes respectively, whilst for those regarded merely as "toxic
to aquatic organisms" or as capable of causing long term
adverse effects, the present thresholds of 2000and 500 tonnes
would be reduced to 500 and 200 tonnes.

10.7 Finally, the Commission has proposed changes in
the application of the Directive to petrol and other petroleum
spirit, for which the present upper and lower thresholds are 50,000
and 5,000 tonnes respectively. It says that, although these are
more frequently involved in environmental accidents than other
substances, they cause less damage for a given quantity. As a
result, it is proposing two changes:

the definition in the Annex to the Directive would be made
more precise, and would in future refer specifically to gasolines,
naphthas, kerosenes and gas oil, thus bringing it into line with
those used in the UNECE Convention on the Transboundary Effects
of Industrial Accidents;

the existing upper and lower thresholds would be reduced to
25,000 tonnes and 2,500 tonnes respectively.

The Government's view

10.8 In his Explanatory Memorandum of 24 January 2002,
the Parliamentary Under-Secretary of State at the Department of
the Transport, Local Government and the Regions (Dr Alan Whitehead)
says that the UK welcomes the strengthened protection standards
for human health and the environment which the proposed amendments
would provide. He says that the change to the mining exclusion
would have no estimated impact in the UK, but that the changes
to the classification system for explosives would affect 30 sites.
Of the other changes, those for carcinogens would affect about
65 sites, whereas those for substances dangerous to the environment
and for petrol would each affect just over 50 sites. That said,
the Government would like to refine the proposal by raising the
proposed qualifying quantities (of 2 and 0.5 tonnes) for carcinogens
towards those (of 20 and 5 tonnes) applying to the "very
toxic" category of dangerous substances, which he says would
better reflect their potential for harm. It also wants to clarify
the system used for explosives.

10.9 The Minister has attached to his Explanatory Memorandum
a preliminary Regulatory Impact Assessment. This gives a fairly
precise estimate of the costs (about £8.7 million over ten
years) arising, particularly from the reduction in the thresholds
at which the Directive would apply. However, it is a good deal
less clear as to the benefits, largely because catastrophic accidents,
although relatively few in number, can have unpredictable, but
potentially very serious, consequences. Nevertheless, on the basis
of previous experience, and of certain assumptions as to how other
safety improvements made in the meantime might affect the comparison
between future incidents and those in the past, the Assessment
suggests that the risk from the sites affected by the proposal
would be between £1.5 and £15 million a year (equivalent
to £11.7 million to £117 million over ten years). In
other words, even on the least favourable assumption, the benefits
ought to outweigh the costs.

Conclusion

10.10 As the Minister has provided a preliminary Regulatory
Impact Assessment, and as he has indicated that a consultation
exercise has been launched following publication of the Commission's
proposal, we infer that he will be providing a revised Assessment
in due course. However, we would be grateful for confirmation
that this is the case, and, in any event, we would like to know
if the consultation throws up any significant issues.

10.11 In the meantime, we are not clearing the document,
and would welcome further comments from the Minister on two aspects
of it. First, he says that the UK would like to see a ten-fold
increase in the thresholds proposed for carcinogens, on the basis
that this would better reflect their potential for harm relative
to the very toxic category of dangerous substances. However, as
we have noted in paragraph 10.7, the proposal itself would already
represent a very significant increase in the thresholds for carcinogens
in Directive 96/82/EC. Consequently, adoption of the UK suggestion
would imply an increase in the thresholds from 1 kilogram at present
to no less than 20 tonnes and 5 tonnes (i.e. by factors of 20,000
and 5,000 respectively). We would be grateful for a fuller explanation
of the justification for these enormous increases, and for an
indication of how a change of this sort would affect the relative
costs and benefits of the proposal.

10.12 Secondly, we note that, although the Commission
envisages a reduction in the thresholds applying to petroleum
products in the current Directive, those it has proposed (25,000
and 2,500 tonnes) differ from those suggested by the Technical
Working Group (5,000 and 2,000 tonnes respectively). In the latter
case in particular, the difference is substantial, and appears
to have arisen as a result of concerns expressed about the burden
which the Working Group's recommendations would have placed on
industry and enforcement authorities. Since the Minister's Explanatory
Memorandum is silent on this point, we assume that he accepts
the Commission's line of thinking, but again it would be helpful
if he could confirm this.